in Re: Innovation Resource Solution, LLC. ( 2015 )

ACCEPTED
12-15-00254-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/16/2015 9:22:17 AM
Pam Estes
CLERK
NO.
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THECOURT OF APPEALS 10/16/2015 9:22:17 AM
FOR THE TWELFTH DISTRICT OF TEXAS PAM ESTES
Clerk
TYLER, TEXAS
IN RE INNOVATION RESOURCE SOLUTION, LLC,
RELA TOR
Original Proceeding from Cause No. 3-42109 in the 3RD Judicial District Court
Anderson County, Texas
PETITION FOR WRIT OF MANDAMUS
BEAU T. SINCLAIR
SBN: 24029835
SINCLAIR LAW OFFICE, P.C.
400 South Broadway, Suite 102
Tyler, Texas 75702
(903) 533- 1005
(903) 533-1379 (fax)
E—maiZ.' efile@ sz'rLclairlawtyler.com
ATTORNEY FOR RELATOR, INNOVATION RESOURCE SOLUTION, LLC
ORAL ARGUMENT NOT REQUESTED
NO.
IN THECOURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
IN RE INNOVATION RESOURCE SOLUTION, LLC,
RELA TOR
Original Proceeding from Cause No. 3-42109 in the 3RD Judicial District Court
Anderson County, Texas
On Petition for Writ of Mandamus to the
3“ Judicial District Court of Anderson County, Texas
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW INNOVATION RESOURCE SOLUTION, LLC, Relator, and
presents this Petition for Writ of Mandamus relating to the Order Disqualzfizing
Jeffrey L. Coe from his representation of Relator, Innovation Resource Solution,
LLC. Relator seeks immediate relief from this Honorable Court to Vacate the trial
court’s Order Disqualifying Jeffrey L. Coe from his representation of Relator,
Innovation Resource Solution, LLC.
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the action pending before the
trial court, as well as the names and addresses of all trial and appellate counsel.
Relator Relators ’ Trial Attorney
INNOVATION RESOURCE Jeffrey L. Coe
SOLUTION, LLC Attorney at Law
P.O. Box 1157
Palestine,Texas 75802
(903) 723-0331
(888) 651-6851 Fax
Relator ’s Appellate Attorney
Beau T. Sinclair
Sinclair Law Office, P.C. , ,,
400 S. Broadway Ave., Ste. 102
Tyler,Texas 75702
(903)533-1005
(903) 533-1379
Real Parties in Interest Real Parties’ Trial Counsel
Calvin B. Smith, Connie M. Smith, James Hankins
and Branding Iron Investments, LLC 606 E. Crawford St.
Palestine, Texas 75801
(903) 729-2102
(903) 731-4732 Fax
Terry Thorn
608 E. Crawford St.
Palestine, Texas 75801
(903) 729-6087
(903) 729-7605 Fax
Respondent 3”’ Judicial District Judge
Hon. Judge Deborah Oakes Evans Anderson County Courthouse
500 N. Church St.
Palestine, Texas 75801
(903) 723-7415
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................ .. iii
TABLE OF CONTENTS .......................................................................... .. iv
INDEX OF AUTHORITIES ...................................................................... .. V
INTRODUCTION ................................................................ .. 3
RELIEF REQUESTED ........................................................... .. 3
ABBREVIATIONS & RECORD REFERENCES .......................... .. 4
APPENDICES .......................... ..................................... ,, ,
STATEMENT OF THE CASE .................................................................. .. 4
STATEMENT OF JURISDICTION .......................................................... .. 5
ISSUE PRESENTED ................................................................................. .. 5
STATEMENT OF FACTS ........................................................................ .. 6
SUMMARY OF THE ARGUMENT ......................................................... .. 7
MANDAMUS IS APPROPRIATE ............................................ .. 8
ARGUMENT ...................................................................... ..9
PRAYER .......................................................................... . . 1 5
CERTIFICATE OF COMPLIANCE ....................................................... .. 16
CERTIFICATE OF SERVICE ................................................................ .. 16
CERTIFICATE OF DELIVERY ............................................................. .. 17
APPENDIX ............................................................................................ .. 18
iv
INDEX OF AUTHORITIES
CASES:
Arkla Energy Resources v. Jones, 762 S.W.2d 694 (TeX.App.—Texarkana
1988 orig. proceeding) ................................................................... ..13
Berger v. Lang, 976 S.W.2d 833 (Tex.App.~Houston [15‘ Dist.] 1998,
pet. denied) ................................................................................. .. 15
Canadian Helicopters, Ltd. v. I/Wttig, 876 S.W.2d 304 (Tex.1994) ................ .. 8
Carmona v. State, 941 S.W.2d 949 (Tex.Crirn.App. 1997) ........................ .. 14
Cimarron Agric., Ltd. V. Guitar Holding Co., L.P., 209 S. W.3d 197 (Tex. App. —
, ,,E1,Paso_20,Q6,,no,,pet,.), .................... .., . . . . . 2. . .2. ,. . _. ., 9,
Haggard v. Snodgrass, 770 S.W.2d 577 (Tex.App.—Da11as 1989, orig.
proceeding) ............................................................................... .. 12
In re Balzn, 13 S.W.3d 865 (Tex.App.—Fort Worth 2000, orig. proceeding) 12
In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006) ................................ .. 15
In re Nitla S.A. de CV, 92 S.W.3d 419 (Tex. 2002) ........................ .. 12,13,15
In re Southwestern Bell Yellow Pages, 141 S.W.3d 229 (Tex. App. —
San Antonio 2004, no pet.) ............................................................. .. 10
National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996) 11
NCNB Tex. Nat 7 Bank v. Coker, 765 S.W. 398 (Tex. 1989, orig.
proceeding) ......................................................................... ..10,13,14
Parker v. Carnahan, 772 S.W.2d 151 (Tex.App.~Texarkana 1989,
writ denied) ................................................................................ .. 14
Spears v. Fourth Court ofAppeals, 797 S.W.2d 654 (Tex. 1990) ............. .. 10,11
Terrell State Hosp. v. Ashworth, 794 S.W.2d 937 (TeX.App.——Da11as 1990,
orig. proceeding) ......................................................................... . . 15
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .................................. .. 8,12
STATUTES:
Tex. Disciplinary R. Prof’1 Conduct 1.06 .......................................... ..9, 10
Tex. Gov“: Code § 22.221(b) ............................................................ ..5
CONSTITUTION
Texas Constitution, article V, section 6 ........................................ .. 5
INTRODUCTION
The relationship between a party in a lawsuit and his lawyer is one of the
most important in law. For that reason, Texas law for 70 years prevents one party
from stripping the other of his attorney, unless there is an actual conflict by which
the attorney has represented both sides at Various times and one representation is
substantially related to the other.
RELIEF REQUESTED
The Relator, Innovation Resource Solution, LLC, asks this Court to issue a
writ of mandamus directing the trial court to Vacate its order of disqualifying their
attorney, Jeffery L. Coe.
ABBREVIATIONS AND RECORD REFERENCES
'3' Innovation Resource Solution, LLC will be abbreviated as Relator.
RECORD REFERENCES
The reporter’s record was prepared by Ellen Earles, the Court Reporter for
the 3"“ Judicial District Court, Anderson County, Texas. A copy of the reporter’s
record is submitted as part of the Application for Writ of Mandamus.
APPENDICES
Appendix 1: Plaintiffs Original Petition
Appendix 2: Notice of Appearance, Request for Notices and Def«;1dant’s
Original Counter—claim
Appendix 3: Motion to Disqualify Counsel
Appendix 4: Reporter’s Record from April 13, 2015 hearing
Appendix 5: Certified Order Disqualifying Counsel
STATEMENT OF THE CASE
On February 21, 2014, Real Parties in Interest Calvin Smith and Connie Smith
filed suit against Innovation Resource Solution, LLC for slander of title as a result
of a contract for the purchase of real estate being filed in the Official Public Records
of Anderson County, Texas. On or about November 4, 2014, Jeffrey L. Coe entered
an appearance in the case as attorney of record for Relator Innovation Resource
Solution, LLC. APPENDIX 2. On April 13, 2015 a hearing was held and no
witnesses were presented at the hearing. However, one exhibit was received by the
court in the April 13, 2015 hearing. See Reporter’s Record, attached as APPENDIX
4. On that same date, the Honorable Deborah Oakes Evans, Respondent, entered an
order disqualifying Jeffrey L. Coe as attorney of record for Innovation Resource
Solution, LLC. APPENDIX 5.
STATEMENT OF JURISDICTION
This Court possesses jurisdiction pursuant to Texas Constitution, article V,
section 6, and Texas Government Code S 22.22l(b) stating that “Each court of
appeals. . .may issue all writs of mandamus. .against a. .judge of a district or
. .
county court in the court of appeals district.” Tex. Gov’t Code § 22.22l(b).
ISSUE PRESENTED
Whether the trial court abused its discretion when it disqualified Relat0r’s
(Innovation Resource Solution, LLC) attorney of record from serving as legal
counsel for Relator and whether this Court should issue a writ of mandamus
instructing the district court to vacate its order disqualifying Innovation Resource
Solution, LLC’s attorney.
STATEMENT OF FACTS
Calvin Smith and wife, Connie Smith, are the plaintiffs in the trial court case,
Cause Number 3-42109. On February 21, 2014, Calvin Smith and Connie Smith
filed suit against Innovation Resource Solution, LLC for slander of title.
APPENDIX 1. On August 22, 2014, in another cause (Cause Number 3-42239,
styled In Re: a Purported Lien or Claim Against Calvin B. Smith and Connie M.
Smith, In the 3“ Judicial District, Anderson County, Texas), Calvin Smith and
Connie Smith secured an ex parte Judicial Finding of Fact and Conclusion of Law
Regarding a Documentation or Instrument Purporting to Create a Lien or Claim.
Cause Number 3-42239 was filed and signed on the same day. Additionally, Cause
Number 3-42239 was the subject matter in which respondents and Jeffery Coe had
an email line of communication and did not relate to information on Cause Number
3-42109. However, those emails were used to infer Jeffery Coe had gained
information in the underlying suit without any testimony at the trial court as to the
subject matter of the emails. See Attachments of Exhibit 4 and Exhibit 5. On
November 4, 2014, Jeffrey L. Coe filed an appearance in Cause Number 3-42109 by
filing a Notice of Appearance, Request for Notices, and Defendants Original
Counter-Claim. APPENDIX 2. On March 18, 2015, Calvin Smith and Connie
Smith filed their Motion to Disqualify Counsel. APPENDIX 3. A hearing was held
on April 13, 2015 on the Motion to Disqualify Counsel. At that hearing, Calvin
Smith and Connie Smith were represented by James D. Hankins and relator was
represented by Jeffrey L. Coe. See Reporter’s Record attached as EXHIBIT 4. No
testimony was elicited at the hearing, however, one exhibit was presented and
received into evidence constituting communications between Calvin Smith and
Jeffrey L. Coe. See Reporter’s Record attached as EXHIBIT 4, also included at an
attachment in APPENDIX 3. On April 13, 2015, the trial court entered an order
disqualifying Relator’s attorney of record. APPENDIX 5.
SUMMARY OF ARGUMENT
There are 70—years of case law that a party to a lawsuit has no standing to
challenge his opponent’s choice of lawyer when that lawyer has not represented the
party. For policy and sense, Texas courts do not want a party trying to strip his
opponent of their constitutionally guaranteed personal attorney relationship and
protections, unless an actual conflict exists by which the attorney has represented
both parties in a substantially related matter.
Here, in a slander of title suit, Calvin and Connie Smith sought
disqualification of relator’s attorney, because the attorney had previously consulted
with Calvin and Connie Smith on a matter that involved a Purported Lien or Claim
against Calvin B. Smith and Connie M. Smith. This is distinguished from the
underlying action in which Innovation Recourse Solution, LLC is defending Calvin
and Connie Smiths’ petition alleging quiet title on real property.
The trial court abused its discretion when it entered the order disqualifying
Re1ator’s attorney since respondents failed to produce any evidence requiring
disqualification. Additionally, any attorney-client privilege was waived as a result
of Respondents’ attorney submitting all communications between the attorney for
Relator and Respondents.
Unless this Court issues a writ of mandamus, relator will lose its experienced
lawyer and counsel of its choice. They have no other remedy.
MANDAMUS IS APPROPRIATE
adequate remedy by appeal, mandamus will issue to correct a clear abuse of
discretion or the Violation of a duty imposed by law. Walker v. Packer, 827 S.W.2d
833, 839 (Tex. l992). To obtain mandamus relief, the relator must demonstrate a
clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-
840. A party establishes that no adequate remedy at law exists by showing that the
party is in real danger of permanently losing its substantial rights. Canadian
Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994).
Relator has a justiciable interest in the dispute. Relator is the defendant in the
underlying cause and retained Jeffery L. Coe to represent relator in this matter. The
trial court has not rendered a final order in the matter. If Jeffery L. Coe is disqualified
as the attorney for relator, relator will be unable to be represented by its attorney of
choice. Relator specifically chose Jeffery L. Coe for representation based on the
experience and knowledge Jeffery L. Coe has in this area. Innovation Resource
Solution, LLC will suffer injury in being forced to proceed in litigation without its
chosen attorney. Innovation Resource Solution, LLC has no adequate remedy at law.
ARGUMENT
In most disqualification motions, the lawyer represented both sides to the
current lawsuit, triggering concern by the former client, now opponent. The issue
then is simply whether the prior litigation is “substantially related” to the currnt one,
or whether disadvantageous confidential information will be disclosed. See
Cimarron Agrz'c., Ltd. v. Guitar Holding Co., L.P., 209 S. W.3d 197 (Tex. App. — El
Paso 2006, no pet.).
ISSUE NO. REAL PARTIES IN INTEREST FAILED TO PRODUCE
1:
ANY EVIDENCE REQUIRING DISQUALIFICATION.
Disqualification is governed by Rule 1.06 of the Disciplinary Rules of
Professional Conduct:
(a) A lawyer shall not represent opposing parties to the same litigation.
(b) In other situations and except to the extent permitted by paragraph (c), a
lawyer shall not represent a person if the representation of that person:
(1) involves a substantially related matter in which that person’s
interests are materially and directly adverse to the interests of another client
of the lawyer or the lawyers firm; or
(2) reasonably appears to be or become adversely limited by the lawyers
or law firm's responsibilities to another client or to a third person or by the
lawyers or law f11m’s own interests.
(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will
not be materially affected; and
(2) each affected or potentially affected client consents to such
representation after full disclosure of the existence, nature,
implications, and possible adverse consequences of the common
representation and the advantages involved, if any.
Tex. Disciplinary R. Profl Conduct 1.06, reprinted in Tex. Gov’t Code Ann.,
tit. 2, subtit. G app. A (Vernon 1998).
Rule 106 warns against offensive use of disqualification by one party against an
opposing party in litigation: “Such an objection should be viewed with great caution
. . . for it can be misused as a technique of harassment.” Tex. Disciplinary Rules of
Prof. Conduct 1.06, cmt. 17. The Supreme Court also takes a dim view of offensive
disqualification motions, explaining, “The [Disciplinary Rule] comments . . .
vehemently discourage the use of motions to disqualify as tactical weapons, as well
as the unnecessary calling of an opponent’s lawyer as a witness to invoke the rule’s
prohibition.” Spears v. Fourth Court ofAppeals, 797 S.W.2d 654, 658 (Tex. 1990).
Accordingly, in ruling on a motion to disqualify, the trial court must strictly adhere
to an exacting standard to discourage use of disqualification as a dilatory trial tactic.
NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex. 1989); In re
10
Southwestern Bell Yellow Pages, 141 S.W.3d 229, 231, (Tex. App. — San Antonio
2004, no pet.); see also Spears, 797 S.W.2d at 656.
There is a two-part test for offensive disqualification motions such as
the Smiths’: (1) Is there an actual conflict in which the lawyer has at one time
represented both parties to the case? (This rule triggers the standing requirement.)
Only if the answer is yes do we proceed to the second question: (2) Is the current
litigation “substantially related” to the prior litigation? See, e. g., National Medical
Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 132, 39 Tex. Sup. Ct. J. 698 (Tex.
1996); Spears v. Fourth Court ofAppeals, 797 S.W.2d 654, 656 (Tex. 1990).
In the case at hand, counsel for respondents offered email correspondence
without providing any insight or description about the communication. The Court
then looked at a few emails and inferred that these emails were substantially related
to the matter at hand. At the April 13, 2015 hearing, no testimony was elicited on
the nature of the emails or whether they were in anyway related to the case at hand.
As previously mentioned, the right of a party to choice the counsel that they believe
gives them the best opportunity in litigation is a very important right. Simply
examining emails that respondent believes to be substantially related to a different
matter should not rise to the level of disqualifying an attorney. The trial court does
not specifically identify the subject matter of communication or conduct that relates
to the current litigation. Prior emails directed at a current party in opposition without
11
any background information cannot be proof that the discussions related to the same
matter. This Honorable Court should vacate the order disqualifying attorney as no
evidence was presented that would lead the trial court to conclude that the matters
were substantially related or that a conflict existed.
ISSUE N0. 2: ANY ATTORNEY CLIENT PRIVILEGE WAS WAIVED
BY REAL PARTIES IN INTEREST.
The Texas Supreme Court has established a two-pronged test in order to
determine whether a relator is entitled to the remedy of mandamus: 1) the trial court
has clearly abused its discretion; and 2) relator has no adequate remedy at law.
Walker v. Packer, 827 S.W.2d 833 839-840 (Tex. 1992). The granting or denial of
a motion to disqualify is reviewable by mandamus. In re Bahn, 13 S.W.3d 865, 872
(Tex.App.~Fort Worth 2000, orig. proceeding). The disqualification of counsel
also renders remedy by appeal inadequate. In re Nitla S.A. de C. V, 92 S.W.3d 419,
422 (Tex. 2002). There is also no interlocutory appeal available from the trial
court’s interlocutory order on a disqualification motion. Haggard v. Snodgrass, 770
S.W.2d 577, 571 (Tex.App.—Dallas 1989, orig. proceeding). The standard of
review to apply is whether the lower court committed an abuse of discretion. Walker
at 839. A clear abuse of discretion occurs when a court reaches a decision so
arbitrary and unreasonable so as to amount to a clear and prejudicial error of law or
if it clearly fails to correctly analyze or apply the law.‘ Ia’.
12
Attorney disqualification should only be applied judiciously and with caution
since it can be used as an instrument of harassment. Arkla Energy Resources v.
Jones, 762 S.W.2d 694, 695 (Tex.App.—Texarkana 1988, orig. proceeding). The
proper procedural mechanism for challenging an attorney’s representation of a client
is a motion to disqualify. NCNB Tex. Nat’! Bank v. Coker, 765 S.W. 398, 399 (Tex.
1989, orig. proceeding). Additionally, in deciding whether disqualification of
counsel is proper, the trial court must determine whether the matters embraced
within the pending suit are substantially related to the factual matters involved in the
previous suit. NCNB Tex. Nat 7 Bank at 399-400. The movant must establish that
the opposing lawyer’s conduct caused actual prejudice that requires disqualification.
In re Nitla S.A. de C. V., 92 S.W.3d 419, 422 (Tex. 2002). The movant must prove
the existence of a prior attorney—client relationship in which the factual matters
involved were so related to the facts in the pending litigation that it creates a genuine
threat that confidences revealed to his former counsel will be divulged to his present
adversary. NCNB Tex. Nat’! Bank at 400. Real Parties in Interest failed to produce
any evidence that any prejudice resulting from the alleged limited communication
that occurred. Trial counsel for Real Parties in Interest could not in good faith have
introduced all email communications at issue with the belief that attorney—client
privileged information was contained therein. Relator believes that the only reason
for the attempt at disqualification is to prevent Relator from exercising his preference
13
and choice of trial counsel, and not because any legitimate argument exists as to
grounds for disqualification. Texas courts have found that a movant “must show
that there is a specifically identifiable appearance of the occurrence of improper
conduct and the likelihood of public suspicion or obloquy outweighs the social
interest in obtaining counsel of one’s choice.” Id. At 237 (quoting Haggard v.
Snodgrass, 770 S.W.2d 577 (Tex.App.—Dallas 1989, no writ). Real Parties in
Interest failed to show any actual prejudice resulting from opposing lawyer’s service
in the underlying cause. Further, it is not enough that a meeting occurred between
the purported client and attorney or that the attorney makes statements to the alleged
client regarding possible legal consequences. Parker v. Carnahan, 772 S.W.2d 151,
l56 (Tex.App.—Texarkana 1989, writ denied).
In the case at hand, Calvin Smith and Corrie Smith, admitted into evidence all
alleged attorney-client privileged materials, thereby waiving any attorney client
privilege. On April 13, 2015, the communications between Real Parties in Interest
and opposing attorney were submitted into evidence by their attorney James D.
Hankins. The power to waive the attorney client privilege belongs to the client, his
agent, or agent acting with the client’s authority. Carmona v. State, 941 S.W.2d
949, 953 (Tex.Crim.App. 1997). Any privilege that may have existed was waived
when the Real Parties in Interest, by and through their attorney of record, voluntarily
submitted the alleged privileged information into evidence without objection and
14
without any limitation on its accessibility or use. In re Ford Motor Co., 211 S.W.3d
295, 301 (Tex. 2006); Berger v. Lang, 976 S.W.2d 833 (Tex.App.—Houston [lst
Dist.] 1998, pet. denied); and Terrell State Hosp. v. Ashwort/1, 794 S.W.2d 937, 941
(Tex.App.—Dallas 1990, orig. proceeding). The documents are now public record.
Disqualification is a harsh remedy, and in considering a motion to disqualify, “the
trial court must strictly adhere to an exacting standard to discourage a party from
using the motion as a dilatory trial tactic.” In re Nitla SA. de C. V., at 422. This
Honorable Court should vacate the order disqualifying attorney as any attorney-
client privilege was waived by Calvin and Connie Smith.
PRAYER
WHEREFORE, PREMISES CONSIDERED, for all the reasons briefed and
set forth herein and in the interests of justice and fairness, Relator praysthis Court
grant its Petition for Writ of Mandamus, and order the 3”‘ Judicial District Court in
and for Anderson County, Texas, to Vacate the order disqualifying Jeffrey L. Coe as
attorney for Relator and for all further relief to which Relator is legally entitled.
Respectfully submitted this day of Ocotber, 2015.
SINCL R LAW OFFICE
By:
Beau T, Sinclair
SBN: 24029835
400 South Broadway, Suite 102
Tyler, Texas 75702
(903)533-1005
(903) 533—1379 (Fax)
E—mail: beau@4§z'nclairlawQler.com
15
CERTIFICATE OF COMPLIANCE
COMES NOW, Beau T. Sinclair, Attorney for Relator, and hereby certifies
that the Petition for Writ of Mandamus contains 3,740 words including the caption,
identity of parties and counsel, table of contents, index of authorities, statement of
the case, issues presented, signature, certificate of compliance and certificate of
delivery.
Beau T. Sinclair \
Attorney at Law
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this pleading has been served on
Beau
1»/"
each attorney of record or parties as required by the Texas Rules of Civil Procedure.
Sinclair
Attorney at Law
16
CERTIFICATE OF DELIVERY
A true and correct copy of the foregoing instrument has been served in
accordance with the Texas Rules of Appellate Procedure via Fax Delivery on this
the W“ day of October, 2015, upon the following:
VIA FACSIMILE DELIVERY
Honorable Deborah Oakes Evans
87”‘ Judicial District Judge
500 N. Church St.
Palestine, Texas 75801
VIA FACSIMILE DELIVERY
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APPENDIX 2
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IN "rm: DISTRICT c0I3m>i2
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3"’ JUDICIAL DISTRICT
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INNOVATION RESOURCE §
summon, LLC §
pgmzqmsmr § ANDERSON CGUNTY, TEXAS
, ,,,,,_,,,,m fI(13ZHEfiOKDRABLE,.IU}1G3ELDESAIDJ30I1RT'H—r
NOTICE OF APPEARANCE AND REQUEST FOR NOTICES
NOW COMES JEFFREY L. 0013 and hercby files this Notice of Appearance of record
as legal counsei for INNOVATION RESOURCE SOLUTION, LLC, and Request for Nesices.
JEFFREY L. (JOE hereby requests that tlwcourt and parties send natice of any fixture. hearings
or action that is taken in tbs abovc~styied case, and that any pieadings 0!‘ other documentatien
filed of reccrd in this cause he saw: by the party fiiing said document to JEFFREY L. COB as
attonvzy of record far INNOVATION RESOURCE 'SOLU'i‘XON, LLC.
DEFENDANT’S ORIGINAL COUNTER-CLAIM
NOW COMES fNN€)VA’1‘iON RESQUKCB SOLUTION, LLC, a Texas Limited
Liability Company, hereinafier called COu.ntcr~P1aI’ntiff,, complaining of and about CALVIN B.
SMITH, hereinafier called Counter-Defendant, and for cause of agction shuws unta ths: Court the
fotlmvingz
PARTIES AND SERVICE
l.— Cour:ter~Pla.in%iff} INNOWXTION RESOURCE SOLUTION, LLC, LLC, is a
Texas Limited Liability Company daing business in Anderson Couaty, Texas.
2. Defendant CALVIN B. SMITH is 2 Texas msiden: that may be serve& with
has reiwmect copyofa
BEFENDAN'l”’S ORIGINAL COUNTER—CLAIM Appen-9: X Page
~~~ ;z.:maz an if: £1
ezzcsz -".’xx::::?.~,',Ta:as
Z§f1rtl'i':iC192tic
3
process pursuant to me Certificate of Service belaw.
JURISDICTION AND VENUE
C<:unte:r»P1aintifi' stipulates m the. pleadings an $33: indicating this com has jurisdiction
and venua ofthis matter.
FACTS
4. On or about January 11, ZGE4, Counter-Plaintifi" entered into an Unimproved
Proyexty Contract for the purchasa of 5.67 acres of land located at CR. 453, Anderson Caxmty,
‘Fens. The contract contained specific provisions relating to thefinancing of the purchasc ofthe
property and was prepared by Counter-Defendant Calvin B. Smith. Over the cause of dea!-ing
between Cou1:;'ter—P1aint$ff and Coxmtet-Defendant, Counter-Defendant held himself out to be a
Sicenzmd real estaxs: agent and that by: bad specia§ skills and knowledge regarding and relafing to
real estate transactions. Counter-Defendant, had previously drafted real estate sales contracts-
between aifpames and had Eads :11: minus representations regarding his gfieciai skills,
knowledgg and expertise. Counterflaintiif nsiied on time representations and executed the
contract preparexi by Counterflcfcndmt with full axpectaztions to ‘purchase the subject property.
Counter~PIainfiff became aware when the cantract was repudiated. by Counterfiefenéiant that in
fact Ccunicr-Defendant was not a Iioenm real estatae agent but was fraudulently using his
fathefs rcai estaxe license since they both have the same name. Count::r~}’1aintifz“ reiied to his
dwimem: on the, representations made by Counter-Defendant regarding his special skiils,
knowlcdge and ‘expertise and tiaat the agreemenz that Cotmter-Defendant pmpar»-:é~a.nd executed
conferred spseific rights relating to the pszrclxase of the property when in fact it is new claimed
that the agmcment dié not convey any rights in Counter-i’1aintifi‘ for the purchase of the
property.
5. Cmzntm-PIaintifi‘ contends that Cmmt,::~Defendant has. arbitrarily and
capriciousiy mgated the Isms of the uontrac: véiich Counter-Defendant prepared. Ceunter-
Defendant disregarded the terms sf that express onmract and tin veriuai and mitten
repzesenmiona made to Counte:—Plaimifi°, and blatantly has refused to comply with the terms of
the contract. Cmmner-Defendant engaged in a continuous course cf unconscionable actions by
taking advantage of the dispamc bargaining position of Counter~Plaimi£f from the inception of
the agreement through the date of th: fifing ofthis counterciaim.
I)l3FENl')ANT’S ORIGINAL CGUNTER-CLAIM
6. Counxer~P!a£ntifi‘ had eqjeyed a Eongstarnding and successful business reiaticstxsiaii’
with Counter-Defendant pxior to execution ofthe contract, and but far the promise ofthe contract
executed bestween the parties, Counter-Plaintiff would never have committed the time, msomm
and energy into coxnpliance with the terms and nonditéons set foth therein and Wonk! have sought
out legal counsei to prepare his own real estate sales contract. Counter-Defezudanfs faihtre ta
stand by the represemations made: :0 Counter-Plainfifi‘ has nesuited 3:1 substantia} flmcmciai injury
to Counter~P!aintiff.
COMMON LAW FKAUB
7. In addition to the bmach of contmct set forth above, Counter-Plaintiff farther
shows that Co1mter~Defendant made material false representations to Cotmter-Piaintiif with the
knowledge of their falsity or with realdess disregard of the truth with the intention that such
neprcsentations be acteé upon by Counter-Piaimiff, and that Counter-Piainziff reiied on these
represmtations to its detriment. Namely, that cozmiés-zrxaimifr vmuld pmchase the subject
property from Counter-Deferxéant and that Countewbefewiant was preparing a valid, enforceable
writtan real estate sales agreement which has now been claimed to be invalid by Coun.ter~
Defendant and that Counter-Defendant possesseé special skins, expertise, and knowledge in
relation to real estate sales andtransactions sinee he was a licensed mat estata agent when in fact
he was frauduiexxfly using his fauLher’s reai esmte sales lioetuse.
8. Coux1ter~PlaintiPf wouid further show that Countewbefendxnt com-salad or failed
to disclose material facts within thc Icnowiedge of Counter-Defeniiaut, that Counter-Defendant
knew that Counter-Plaintifi‘ did not have knowledge of the same and éid not have. equal
0pp<)1'£1mi£y to discover the truth, and that Counter»~Defendam mended to induce Ce:mter—
I’lair_1t':fi"to enter into the transaction made the basis efihis suit by such concealment or faiiure to
disclose.
9, As a pmximazte msult of such fmki, Counter-Plaintiff sustained damages within
thi§ court"s3‘urisdimianai limits.
NEGLIGENT MISREPRESENTATION
10. Counter—PlaimEfi‘ wouid, show in the alternative the: Co1mt:r~Def’endan: supplied
~
false infonnation in the course af said Cmm£cr«DeR:ndazi£'s business, prufession or employment,
or in the course of at mxnsaction in which Countepflefendant had a pecuniary ixzterest, and am:
such information was suppiied by Counts:-Defendant for the guidance of Comm,-r—P1aimiffin the -
mma. corsectzxepyafa
fozmsmz an Sic tf
DEFENDAN'I“’S ORIGINAL COUN‘X‘ER~CLAiM 5
P385 3 ~.
transactiens described hercinabove, Cm.zntervDefendant fadlcd to exercise reasonable care or
competence in obtaining or commxmicazing such information. Ccanter~Plaintiff avers that
Commzcxviflaintifi‘ suffered pecuniary loss which was proximately caused isy Cozmter«P§aintifi‘s
justifiablc rciiance on such information.
ll. Counter-Plaimifi" fimcrefore asserts a cause of action for negligent
misrepresent.-man against Cmmter~Def:rzdant, as provided by
__'l;y}_g;,g,_S}_qg.a_§, 825 S,W.2d 439 (Tex 199:).
BREACH OF CONTRACT
ll Counter~Plaimiff would further show that the actions and/or emissions of
Defendams described hercinabcve constimte bmch of contract, which proximately caused the
direct and conscquemial damages of Ccuntcrmaintitf described hcrcinbclow, and for which
Ccmmcr-Plaintiif hereby sues.
DECEPTIVE TRADE PRACTICES:
l3. Counter-Plairztiff would show that Ccuntcrfiefcndant engaged in certain false,
nfisleading and dcceptfive acss, practices and/er omissions actionable under the Texas Deceptive
Txade Pmcficcs ~ Consumer Protection Act (Texas Business and Commerce Code, Chapter
17.42, §t___s_gg.), as alleged hcrcinbeiow.
14. ms . c x =..»_ ,
.-. .. .3. -_
‘
o 1-,_."
giggfign, Countenbcfendanz engaged in an
"uncoxxsciothableactioxt or coursc of action“ to the detrimcnt of Countcr-Plaintiff as that tam is
defined by Section 1145(5) cf the Texas Business and Commerce Code, by taking advantage cf
the lack of knowledge, ability, experience, or capacity of Comm-.r»P1ainfifi‘ to a grossly unfit}:
degree.
14. Defendant violated Section 17.4602) of the Texas
Business and Commerce Code, in that Defendant:
8:) caused confusion or misunclarstandlng as In the source, sponsorship,
approval, or certificafion ofgoods or scrviccs;
(32) mprcscnted that goods or servicw have spcnsomifip, approval,
charactezrfistics, ingredients, uses, benefits, or quantilies which they do nu: havc or tha’:’ a
person has a spcnscrship, appmval, staius, afiiliation, or conncction which he does not;
(c) rcprcscnted that an agrecmcnt confem or involves fights, remedies, nr
obligations which i: does no? have or involve, or whlch are prohilsited by law; and
nzpaxnarws omcman COUNTER-CLAIM
(e) faifed to disciose infermation concerning goods or services which was
known at the time of the transaction with me imcmion to induce the consllmfir 31110 K
transaction into which the consumer would not have esxtewd had the information wen
disclosed.
I5. Ccumcr~PIa§ntiff woukl Show that the ants, practices andfor
omissions complaineé ofwere the producing cause of Counter-Plaintiffs damagea.
15. Contact-Plaintiff wouid fizflher show the, acts, practices and»,/at
omissions complained of under Section 17.4~6(b} of the Texas Business and Ccmmerce Cocie
were rciied upon by Counter-Piaintiff t0 Coun£er~PIaintif§‘s detriment.
17. Coumer—P1aintiff‘ was unahie to provide
written notice to Coumer~Def:ndani sinca suit was initiated by C0untervDefendant against
Counter—P1aintiffami the case is currently set far aria}.
I«:c0No1viiTC AND ACTUAL uuixens
18. Cor.mter—¥’lain1ifi' sustained the economic and actual damages as a resuh ‘cf the
actions andlcsr amissicms of Countewnefendants éescribod hereinabove within the jurisdictional
limits of this court.
MU LTEPLE BAMAGES
19. As alleged hereiuabove, Crmnter-Piaintifi‘ wouié show that the false; misleading
and dcceptive acts, practices and/or omissiens cpmplained of herein were committed
"1mowing!y“ in that Couater~Defenc1ant had actual awareness of the falsity, deception, £3:
unfaimess efsucix acts, practices, and/or eamissions.
20. Couutsr—P1ainti§° further avers that such acts, practiees. and/or omissioxis were
committed "imemional1y“ in mat Comxtex-Befexzéanl specificaiiy intcndcd that Count-.r~P1aintifi'
act in detrimental reliance on the wsity or Ciacepticn or in detrimental ignorance of the
unfaimess.
21. Therefbre, CounI:er~P$aimifi‘ is entitled 1:: recover rrmitiplc damages as provided
by I7.5G(b}{l} 91' the 'E‘exas Business ami Commerce: Coda.
EXEMPLARYDAMAGES
22. C4m‘ntar~?1aimifi' wouid fin1I:er show that the ants and omissions of Counter.
Defendant complafiseé cf herein were coxnmitted kn-owingiy, wilifully, intentionally. with aetual
awmness, and with the specific and pmdetemxined inxeminn of enriching said Counter»
D131'<’ERI}ANT’S ORIGINAL COUNTER-CLAIM
Defendant at the expense of Cuunter-Piaintiff. In order to punish said Cuunu:r~Defendant for
such unccnscionabic orverreaching and to deter such asthma azxdler omissions in the fixture,
Counter-Plaintiff also seeks recovery fiom Counter-Defendant fur exemplary damages 33
pmvissed by Section 4! .0030) ofrhe Texas Cfivil Practice and Remedies Code.
ATTORNEYS FEES
23. Request is made for ail costs ané xeascngbie and mtcessary attomeys fees
incurred by of on behalf of Counter-Piaimziff herein, including :11: fees necéssary in the event of
an appeai of this cause to the Court of Appeals anci the Supreme Court 0:“ Texas, as the Court
deems equitabie and just, m provided by: (a) Chapter 38 of film Texas Civil ¥'i*aetic<: and
Remedies Code; (19) the Texas Deceptive Trade Pmctices Act; and (1)) common law.
PRAYER
wmannroxs, PREMISES CONSIDERED, Plaintifi‘ mspecifuily prays that the
Defendant be cited ts appear and answer herein, an-i than upon a final hearing of the cause,
judgment be catered for the Plaintiff against Defendant for the ewnomic and actzsai damages
requested hcreinabovc in an amount in cxmss of the minimum jurisdiotimral limits of the Court,
togethcz with prejudgment and postjudgmerst interest at the maximum rate auoweé by iaw,
attorney's fees. costs of court, and such other and fixrther relief to which the Haintiff may be
~
entitled at law or in equity, whether pied or unpled
~
Reapectfuily submitted,
~~ Attamey at Law
”
Cy
State: Bar No. 24901902
1000 N. Church St.
PO. Bax I 15 7
Pafestine, TX 75802-1 £57
T61. (903) 723-6331
Fax. (388) 65143851
Email: jcff@¢oe§awfirm.oom
Attflrney‘ for Com1t:*:r~Pfaintif‘f
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on Novstmber 4, 2014 2 true and correct copy cf the foregoing Defendanfs
E certify 3:31
Originai Counter-Chaim was served pmsuant ts; tbs Tsxas Rules of Civil Procedure. on opposing
couxzsel.
DEFENDANT’S ORIGINAL COUNTER-CLAIM ?age 7 of 8 Pages
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~
ooz>s?.m¥2¢e«> wrote:
""Ml‘."Sl"'riith.’
’ ' ’ ’ ” ’ " ' ' ’ " ' ’ " ’ ’ " "
You sent me everything need to I tile the motion to remove the irnproperlinvalid lien. Just need to make
payment arrangements and lwitl file this tomorrow. will need you to sign the verified pleading. have court in
I I
the District Court on Friday and will approach the judge with the order then and get it signed and filed and back
to you.
Jeffrey L. Coe
Attorney at Law
Law Office of Jeffrey L. Coe
1000 N. Church St. (75501)
P. O. Box 1 157
Palestine, TX 75802-1 157
(888) 651-6851 Toll Free
(903) 723-0331 Phone
(868) 651-6851 Fax
Email i§ff@coe|awfirm.cgm
CONFIDENTIALITY: This email. and any attachments. are intended only for use by the addressee or addresses
named herein and may contain legally privileged or confidential information. if you are not the intended recipient of
this email, you are hereby notified that any dissemination, distribution, or copying of this email or of any attachments
hereto is strictly prohibited. If you have received this email in error. please delete the original. any copy of this email
or attachment. and any printout thereof and notify the sender Immediately.
NOT INTENDED AS A SUBSTITUTE FOR A WRITING: Notwithstanding the Unifonn Electronic Transactions Act or
the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein,
this email message, its contents. and any attachments are not intended to represent an offer or acceptance to enter
into a contract and are not otherwise intended to bind the sender. the Law Office of Jeffrey L. Coe. any of its clients.
or any other person or entity,
From: Calvin smith om
’
; I n I:
sent: Tuesday, February 11, 2014 11:31 AM
To: Jeff Coe
Subject: Current Survey
Exhibit A
Page 1 of 5
On Monday, February 17, 2014 4:54 PM, Jeffrey L. Coe wrote
get intouch with Jackson.
'
’l’lt
Jeffrey L. Coe
Attorney at Law
Law Office of Jeffrey L. Coe
1000 N. Church St. 05801)
P. O. Box 1157
Palestine, TX 75802-1157
(888) 651-6851 Toll Free
(903) 723-0331 Phone
(888) 651-6851 Fax
Email jeff@g9_e gwfrrncgm
CONFIDENTIALITY: This email, and any attachments, are intended only for use by the addressee or addresses
named herein and may contain legally privileged or confidential information. if you are not the intended recipient of
this email, you are hereby notified that any dissemination, distribution, or copying of this email or of any attachments
hereto is strictly prohibited. If you have received this email in error, please delete the original. any copy of this email
or attachment. and any printout thereof and notify the sender immediately.
NOT INTENDED AS A SUBSTITUTE FOR A WRlTtNG: Notwithstanding the Uniform Electronic Transactions Act or
the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein.
this email message, its contents, and any attachments are not intended to represent an offer or acceptance to enter
into a contract and are not otherwise intended to bind the sender, the Law Office of Jeffrey L. Cue, any of its clients.
or any other person or entity.
From: C Smith [mallto:aggie|ending@gmali.com]
Sent: Friday, February 14, 2014 4:56 PM
To: jetT@coelawfirrn.com
subject: Fwd: Relase of EMC
Please see below. We thought we had this all worked out, but looks like we are wrong. spoke to I
Jackson Hanks and he said he will discuss with you the situation. want to make sure we get this
I
handled so his underwriters will issue a title policy on the cash sate.
‘
ExhihitA
Page 2 of 5
Thanks, C
Begin forwarded message:
From: "Tim Wagner"
Date: February 14, 2014 at 1:28:15 PM CST
To: , "mark mullin"
Cc: "Joy Phillips“
Subject: RE: Release of EMC
Calvin & Mark,
i am in receipt the Release of EMC by your Title Company. innovation Resource Solution (iNNOVATi0N)
is willing to entertain a monetary settlement for our Release of Claim.
As you are aware, this matter has weighed heavy on my heart and there has been much discussion
regarding personal beliefs and desires to be Christ-like both in spirit and nature, believe that applies to
I
all parties. I also have responsibilities to our investors. The property is both strategic and vital to
INNOVATlON's agriculture plan.
with regards to the Smith's, lNNOVATi0N has suffered damages and is entitled to their right to
purchase the land as per the contract or be compensated for damages.
As Mark stated, “Calvin never should have taken it this far’ but that was Calvin’: choice. Calvin is
experience and licensed in real estate transactions, agricultural lending, and should be held accountabie
rather than rewarded for his actions.
Absent ofa Settlement, INNOVATION will continue to pursue its CLAIM ofthe property and pursue every
legal remedy at its disposal by all lawful means that have been previously stated by our Legal Counsel.
Respectfully,
T«'»n~ A. W454-ea
Innovation Resource Solution, LLC
6300 Riglea Place, Suite 100
Fort Worth, TX 76116
Ph: (972) 793-2298
e—fax: (866) 354-8604
The information in this message is the property of innovation Resource Saiuuonr LLC. This message is inlended only ior
the use at the addressee named above and may contain legally privileged andlor confidential iniorrrrauon. if you are not
the intended recipient of this message. you ara hereby notified that any use. dissemination, distribution orcopying of this
message is strictly prohibited. if you receive this message in error. please notify us immediately by telephone or return s~
mail and delete the massage. all copies thereof and any zmzchrnensa We thank you for your cooperation.
Exhibit A
Page 3 oi 5
From: mark muilin imaiitmmarkmuliinQhotmailcom
Sent: Thursday, February 13, 2014 2:59 PM
To: gimwagner@i;esogrce§_qlgtion.;gm
Subject: FW: Release of EMC
Tim:
in answer to your question about what are you being asked to do, the title company is asking
that you execute this document and have it notarized.
Let me know ifl can help.
Thanks,
Mark Muiiln
Subject: Fwd: Release of EMC
From: aggieiending@gmaii.com
Date: Thu, 13 Feb 2014 10:48:16 0600
To: rnarkmuliin@hotmaii.com
FYI
Begin forwarded message:
From: Rebekah Cannon
Date: February 13. 2014 at 9:01:54 AM CST
To: "aggielending@gmail.com"
Cc: Mary Arie
Subject: Release of EMC
Mr. Smith,
Here is the Release of Earnest Money Contract. Mary asked me to
forward this to you. if you have any questions, please let us know.
Thank you,
Rebekah Cannon
Escrow Assistant
Texas First Title Company, LLC
601 E. Lacy Street
Paiestme, Texas 75801
903.723.5393 - Office
903.731.4739 ~ Fax
Rebekah,cannon@texasfirstt§tie.corn
Exhibit A
Page 4 of 5
CONFIDENTIALBTY NOTECE: This message ls fur the benefit of the named person(s) only. It may
contain cunfidenzéal, proprietary or legally privileged information. Nu confifientialiiy or other
pfwilage is waived or lost by any mis-transmission. Do not directly or indirectly use. disclose,
dlstribuxe, print or copy any part of the message xransmllted if your are not the intended
raclplent. Ifyou receive thls message in error, please lrru-nediately delete it and all copies of it
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sj3l;rm;"%a;;rl.a"ls;a1l:;;‘;;;;;g;g.;.
Checked by AVG - www.avg.com
Version: 2014.0.4259 I Virus Database: 3697/7088 - Release Date: 02/12/14
Exhibit A
Page 5 of 5
APPENDIX 4
..x
REPORTER‘S RECORD
VOLUME 1 OF 1 VOLUMES
N TRIAL COURT CAUSE N0. 3-42109
m
CALVIN B. SMITH, CONNIE M. ) IN THE DISTRICT COURT
a SMITH, )
m
)
3
Piaintiffs, 3
m )
VS. ) ANDERSON COUNTY. TEXAS
N )
3
m INNOVATION RESOURCE 9
S0£UTION, L.L.C., }
m
5
Q Defendants. ) 3RD JUDICIAL DISTRICT
—-\‘—ls
)
..\.
.4 IR)
.4 OJ
.3 41
.3
U1
...\
CD
.4.
‘*4
.4».
(X7
._s.
(Q
N0 On the 13th day of Aprii, 2015, the foT3owing
N1 .:u
proceedings came on to be heard in the above-entitied
NN and «numbered cause before the Honorab1e Deborah Oakes
N CA).
Evans, Judge presiding, haTd in Palestine, Anderson
N -h County, Texas;
l\3 U!
Proceedings reported by machine shorthand.
...\
APPEARANCES
FOR THE PLAINTIFF8:
Mr. James Hankins
LAW OFFICE OF JAMES D. HANKIN5
606 East Crawford Street
Pa1estine, Texas 75801
Telephanez (903) 729-2102
—‘-$COO9\§a3C)'1-§~(D3f\)
SBOT No. 08912300
FOR THE DEFENDANTS:
Mr. Jeffery Coe
LAN GFFICE OF JEFFERY COE
1000 North Church Street
..A..a.
Palestine, Texas 75801
Te1ephone: (903) 723-0331
SBOT NO. 24001902
...x M)
....A
(10
.2;
-Ph
....x
O‘!
.4
O‘)
...a
-3
..x
03
.3.
(O
B) O
N _.x
N) N!
Ix: 60
N -(X
M 01
...n
INDEX
VOLUME 09 1 VOLUMES 1
P0 (MOTION TO DISQUALIFY)
(J3
Page V01.
APRIL ‘I3, 2015
-5-
Court‘s Rafling . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 5 1
0301
End of proceedings . . . . . . . . . . . . . . . . . . . . . . . . .. 6 1
Court Report:-ar's Certificate . . . . . , . . . . . . . . .. 7 1
-‘:©€QUD‘~{
EXHIBIT INDEX
..;.a.
PLAINTIFF8‘
NO. DESCRIPTION OFFERED ADMITTED VOL.
.4.
N A E—ma1'1s 4 5 1
_s.
(13
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.a
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A 00
.1 {O
MO
N ..\
MN
NW
N 4¥
M 0'!
,3.
P R G C E E D I N G S
(Open court)
THE COURT: Okay. I know I got a —- iet me
go ahead and ca11 this one because I know it’s going to
take a1} of a second? and than 1'31 do the p1ea. Ca1vin
Smith and Innovation Resource.
OCOO0‘*~lC7)U‘l3?»0DX\)
MR. HANKINS: Yes, Judge.
THE COURT: The rest of y‘a11 can have a
seat.
_x
MR. HANKINS: I represent Mr. Smith.
-3 ...x
THE COURT: ?hat‘s 3«4210Q. Let me have
..x
N the file. Okay. I haé a hearing on a Motion to
...x 03
Disqua11fy Mr. Coe as counsel. Correct?
.3
-33
MR. HANKINS: Correct.
...x (.71
THE COURT: That was -- there was a writ
..\ C) fiied?
...s.
N MR. HANKINS: Yes, he took ~~ on procedurai
.4.
W matters, and it's been -- that waa held as moot because
....x
(D the Court entered an order rescinding that first order
l\)
O so we couTd do it and get the evidence in.
N) .4
THE COURT: Okay. And what is the
MN evidence?
N (40
MR. HANKINS: It‘s Exhibit A. It's the
N «[3»
e-maiis from Mr. Cue ta my a11ent.
IN? C}!
THE COURT: Those are the ones that I
.1»
actually a3ready reviewed, correct --
MR. HANKINS: Yes.
MR. CUE: Yes, Your Honor.
THE COURT: -- when I made my 1nitia1
deciséon?
MR. HANKINS: Right.
MR. CO5: Yes, Judge, you've a1ready
aomoawmmhwm
reviewed those, and I don‘t have any objection to the
e-maifs.
...a
THE COURT: Okay. Exhibit A fis admitted
7 7 7 i K K
._\
into avidence.
._\
N flR. HANKIRS: So the test is this is
....x
W substantiaT1y re1ated tn the very case ~—
_A $3 THE COURT: It is, I mean, and I’d Tike to
.4
U!
keep you cm the case, Mr. Coe, but I just —~ I thought
...n
U!
ha was disquaTified. That's why I entered the arder to
....n ‘*4
begin with. I stiii think you‘re disquaiified.
.3 G3
MR. 805: That‘s fine, Judge. I
.a.
(O understand.
M0 THE COURT: So I'm signing the order
R3 .4
d€squa1ifying you, and then hbpefu11y we can get
M {Q somebody e3se on the case pretty soon, and then
N (J0
thereafter we can get the tria1 date set. Okay?
l\> -1%
MR. HANKINS: Thank you. Your Honor.
l\) 61 THE COURT: Let me get this signed, 1*}?
..A
give that to y‘a11, and then 1'}? take up the plea.
(End of proceedings)
CJL0C0"-ICDCJ’l-IXOJYKJ
_x
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-A
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.4. «law
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N U)
N -33
N 01
.3
REPORTER'S CERTIFICATE
THE STATE OF TEXAS
COUNTY OF ANDERSON )
I, Eilen Earies, Deputy Officiai Court Reporter in
and for the 3rd District Court of Anderson County, State
CD(D®\fG’)-L\3f\}
of Texas, do hereby certify that the above and foregoing
contains a true and correct transcription of a1]
portions of evidence and other proceedings requested in
writing by counsoi for the parties to be inciuded in
_:
this volume of the Reporter's Record, in the
.3.
.4
above—sty1ed and —numbered cause, ali of which occurred
_x
N in open court or in chambers and were reported by me.
.a.
C0 I further certify that this Reporter's Record of
.4.
-F the proceedings truiy and correctly reflects the
..x
U!
exhibits, if any, admitted by the respective parties.
..m
G) I further certify that the totai cost for the
.4
‘-1
preparation of this Reporter’s Record is $ and
.1.
00 was oaid by ___________ WMWMMMWW.
.4 {Q WITNESS MY OFFICIAL HAND this the 15th day of
N0 September, 2015.
K3 .4
NN
Eiien Ear1es, Texas CSR #9i01
N (A!
Expiration Date: 12/3112015
Susan waidrip Court Reporting
N ~§ PO Box 1507
Fairfiefd, Texas 75840
N .01
Teiephonez (903) 389-4827
Fax: (903) 389-4310
T‘)
{I ‘fit .
an Tuesday, February 11, 2014 3:35 PM, Jeffrey L Cue wrote:
Mr. Smflh.
You sent me everything need to file the rrmtlor: to remove the lrnproperlinvalid lien. Just need to make
I
paymeaf arrangements and file this tomorraw. will need you to sign {ha verified pleading. have court in
2 will I l
the District Court on Friday and will approach thejudge with the order than and get ii slgned and filed and back
to ‘you
Jeffrey L. Cua
Atiomey at Law
Law Office of Jeffrey cos
V
1..
1000 N. Church St. (75801)
P. O. Box ‘I ‘I57
Palesfine. TX 75802-1157'
(B88§ 651—685’l Toll Free
(903) 72340381 Phene
(885) 651-33851 Fax
Email jeff@cnelgwfirm.co‘m
CONHDENTEALITY: This email. and any afiachmenis, are intended only for useby the addressee or addresses
named herein and may comain legaily privileged or confidential lnforrnationr {E you are not thain-tended recipient of
this email.you are herebynptified that any dissemination, distribution, or copying at this email or of any atlachmenté
herein prohibited, if you have received this email in error, please deleta the original, any copy of this email
is strictly
or attachment and my printout thereof and notify the senderimmecliately.
NOT WTENDED AS A SUBSTETUT E FORA WRiTlNG: Notwithstanding the Uniform Electronic TF3l'lS8C‘5Uf‘l$ Act or
the applicability of any other law of similar substance or effect. absent an express statement to the contrary herein,
this email mességé. its oonterrls; 3”“ any attachments are not intended in reprasant an offer or acceptance to enter
ma L
3 contract and are not olherfinisa intended to blur: the sandar, the Law Qffice of Jeffrey Coe, any of lts clients,
or any cthar person or entity. .
From: Calvin Smith {mg$l;9:§‘:go§nsc@5g:ahgg tom]
Sent: Tuesday. February ‘H, 2014 ’ll:3‘l AM
Ta": Jeff Coe §
Subject: Currant Survey
1
Exmbxm
Page? nf5
§
on Monday‘ Feloruary 1?, 2014 4:54 PM! Jeffrey L. Goa wrote
121 get tn touch with Jackscn.
Jeffrey L. Cane
Attorney at Law
Law Office of Jeffrey L. Cog
1009 N. Church St. (75801)
F‘. G. Box1157
Palestine, TX 76802-1 157
(388) 65?-6851 Tail Free
(906) 723~033’t Phone
(888) 651-6851 Fax
Email Lefi@::.
mate: Febmary 14, 21314 at 112821 5 PM CST
To: , “mark muilin“ i
Cc: “Joy Phiflips“
Subject: RE: Release of EMC
Ca§\/in & Mark,
I am in raceipt the Release of EMC by your ‘Fife Compaav. innovation Resource Solution (INNOVATION)
is wiiling to entertain a monetary sattiamentforour Reiease of Claim.
As you are aware, this mattnr has weighed heavy on my heart and there has been much dismssion
ragarding personal beliefs and desires to be Chrisfitke both in spirit and nature‘ believe that appfies to
I
ali parties, § "also have respo nsibiéifies to our Investors. The property is both strategk: and \f1taH:c
!NNO\1ATION’s agriculture plan.
With regards tn the Smith's, !NNOVA1”xDN has suffereddamages and is entitied to’ their right to
purchase the is nd as per the contract or be compensated for damages.
As Mark stated; "Calvin nevershuuld have taken it this far” but thatwas Calvfws chcice. Calvin is
experience and licensed in real estate transactians, agficultural lending, and shoutd be held accuuntable
rather than rewarded for his actions.
Absent :1? a Settiernent, WNOVATEDM will continue to pursue its CLAIM of the property and pursue every
legal remedy at its d$spesaI by all iawful means that have been previously stated by our Legal Counsei.
Res‘pe«:tful£y,
Tim Wagam
Innovation Resource Soéut-ion, LLC
5300. Rigiea Place. Suite 100
Fort Worth, TX 76116
Ph: {Q72} 793-2298
e~faxt (855) 3S4—8504
This ininrmgtmrc in this message is the prapefiy of Innovation Rssossrca Suzufian. LLC. This message is
am W
tmandea
the use of the adcirsssea named abave and may uuniairr iagazlly privihegezzl andlu1‘
ma iniended recipient oftbis message, ybu as
Ede, {S llnfc I
WW ma
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harsh}; unified that any use’. dissrgri-r“1ri‘:aa2ir‘>1n,adxsuigrggggr
pm
‘ Yi
‘T195539? 35 W551‘? 9Y‘*W>5*34~ 37 5'9‘! mcefva this message in error. pieésa nnfifswa immadiakély by rerapaffigfrif:-i”:
V1315 Md 5673“ EH6 m%5'=‘3§|é..3" 609393 Kheréaf and any zthazhmants. W& thank-yen for yvaurcmapazatiun. ‘
Exmbn A
Page 3 cf 5
s‘
From: mark muliin maifto: _a ulii home‘! c
Sam: Vhursday, February 13, 2014 2:59 PM
Ta: tirnwagnergjrescn grcasol ution.c:<:>g3
Subject: FW: Rekzase of EMC
Tim:
In answer to your questlcn abuu: what are you being asked to do, the title company is asking
that you execute this document and have it natarizeci.
Let me krmw iflcan hafp.
Thanks,
Mark Muifin
-m...‘..,...m
subject: Fwd: Release of EMC
From: agg:’elending@gmgII.<:c>m
Daie:Thu, 13 Feb 201.4 10:48:15 -0600
To; markmz.u!Iin@hatmai!.com
FYi
Begin forwarded message:
From: Rebekah Cannon
Date: February 11-!,2Q»14V at 9:01:54 AM CST
To: "2ggIe1ending§gj§gmail.com“ <2 ieiendin aiI.com>
Cc: Mary Amie
subject; Release of EMC
Mr. Smfith,
Here is the Release of Earnestymaney Contract. Mary asked me to
forward this to you. lfyou have any questions, please let us kncw.
Thank you,
Rebekah Cannon
Escrow Asslstani
Texas First Trtle Company, LLC
601 E. Lacy Streei
Pafiastine, Tsxas 7880i
§03.72’3,53‘33 — Office
903.731.4739 ~« Fax
Rebekah.c:annon@tex2afirst£ii2e.com
Exhlbftfix
Page 4 uf 5
J», _..," :-
C{]bmD£m‘tALlYY NOTICE: This message is for 'rh¢=.-‘benefit of the named parsantsl only. It may
contain confidential. proprietary or Iegailv pfivfieged Snfurmsation. Nb confidentiality or amen‘
priviiege tS waived cw lost by any m'xs—tra:xsmisswr>. Do not dénzctly =3: indiceczty use, dismlose.
aiistributa. print or crspy any part of the message transmitter: If your are not the ‘nwtendesi
recipient. if you receive this messagein ermr, please immediately daleté it and all cepies of 2!
{ram ‘(cur system, deztray an hard copies and notify the sender of its receipt
Na virus found In this message.
Checked by AVG - www‘avg.com
Version: 2014.0.4259 I \/Ems Database: 369717088 - Reiease Date: 021*‘! 2/14
mm
Page 5 c:f5
APPENDIX 5
FF FOR RECORD
ALLuEf.Z__" 3'
o‘c£ock_cL.;:-..
APR 1 3 Z815
CAU SE NO 3-421
M"--_.09
JANICE STAPLES
Dlstfi<£G!etk.#oderaa:1OauIy,1X
W 969»
CALVIN 3. SMITH AND CONNIE M. § IN THE THIRD JUDECIAL DESTRICT
SMITH, Plaintiffs §
§
VS, § COURT OF
‘.5
INNOVATION RE$0URCE §
SOLUTION, LLC, Defendant § ANDERSON COUNTY, TEXAS
ORDER DISQUAUFYIRG COUNSEL
The motion to disqualify counsei of innovation Resource Solution, LLC having
been presented to the Court, and me Cour: having considered and read the papers and
pleadings filed in connection with the motion and having heard the anjguments of
counsel, the Com ‘finds that the former matter in which Jeffrey L. Coo represenied
Calvin Smith is substantleliy related to the present matter in that:
1) Calvin Smith oonsulted with Jeffrey L. Coe regarding the alieged Earnest
Money Contract that is now in dispute in this matter and for which innovation Resource
Soiution, LLC now sues for breach of the contract; and
2) Jeffrey L. Coe advised Caivin Smith to file a motion to remove an invalid
fien which is now the basis of Caivln Smitrfs claim against Innovation Resource
Soiution, LLC.
IT is THEREFORE ORDERED that Jeffrey L. {Joe is disqualified from
representing Innovation Resource Sotution, LLC in this matter,
C. Smnh - Order Disquafifyfng Counsel «
5:393 1 of 2
tar *
so
Signed this 13th day of April, 2015.
APPROVED AS TO FORM:
LAW OFFICES OF JAMES D. HANKINS
606 E. Crawford street
Paiestine, 3'X 75801
Telephone: {$303} 729-2102
~~
Fax:
~
By: “,
~~ D. HANKINS
~~ Bar No. 08912300
ail:jdh@jameshankinslaw.com
Attorney for Calvin Smith
‘
_ . 3'
~
,
‘
C. Smith -‘rordhr D1'squaEfy'?ng"CounseI